Morley & Ors v Australian Securities and Investments Commission [2010] NSWCA 331

Reported Decision: 81 ACSR 285

New South Wales Court of Appeal

CITATION: Morley & Ors v Australian Securities and Investments Commission [2010] NSWCA 331 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 19, 20, 21, 22, 23, 27, 28, 29, 30 April 2010

JUDGMENT DATE: 17 December 2010

JUDGMENT OF: Spigelman CJ; Beazley JA; Giles JA

1. In each of 2009/298425, 2009/298427, 2009/298428, 2009/298440, 2009/298441, 2009/298442 and 2009/298524: (a) Appeal allowed; (b) Set aside the declaration and orders made against the appellant on 27 August 2009; (c) Order that the proceedings against the appellant be dismissed with costs. (d) Cross-appeal dismissed. (e) Order that ASIC pay the appellant's costs of the appeal and cross-appeal. ... 2. In 2009/298408: (a) Appeal against the declaration made on 27 August 2009 dismissed; (b) Cross-appeal dismissed; (c) Stand over the appeal and cross-appeal to 9.30 am on 4 February 2011 before Giles JA for directions for their further conduct. DECISION: ... 3. In 2009/298416: (a) Appeal allowed in part; (b) Set aside declarations 1 and 2 made on 27 August 2009; (c) Appeal against declaration 3 made on 27 August 2009 dismissed; (d) Cross-appeal allowed in part; (e) Declare that the appellant contravened s 180(1) in relation to JHIL by his conduct, as an officer of that corporation, on or about 15 February 2001 in failing to advise its board of directors that the best estimate contained in a schedule attached to an e-mail dated 9 February 2001 and in a report dated 13 February 2001 being estimates by Trowbridge Deloitte Ltd of JHIL's liabilities for exposure to asbestos products for up to 50 years and for 20 years respectively had not taken into account superimposed inflation, and a prudent estimate would have; (f) Liberty to apply within 14 days in relation to the terms of the declaration in (e); (g) Cross-appeal otherwise dismissed; (h) Stand over the appeal and cross-appeal to 9.30 am on 4 February 2011 before Giles JA for directions for their further conduct.